' This revision petition arises out of a suit for possession through preemption filed by Muhammad Abdullah Mahmood respondent on 4-10-1978 in the Court of the learned Civil Judge, Shakargarh to pre-empt land measuring 20 Marlas 1-1/4 Sarsahis situated in Mauza Shakargarh, District Narowal (previously Sialkot). He claimed pre-emptive right on the ground of being son of Ch.Abduf Majeed vendor. Another suit was filed by Mst. Razia Sultana on 8-10-1978 under section 16 of the Punjab Pre-emption Act. Both the suits were consolidated vide order dated 13-2-1980. The land was originally purchased by Mst. Parveen Akhtar petitioner No,1 who subsequently sold the same to Muhammad Arif and Muhammad Asif petitioners 2 and 3.
2. The suit was resisted by the petitioners/defendants who filed their written statement in the Court on 13-4-1980. Mst. Razia Sultana, the rival preemptor filed her separate written statement in the respondent's suit on 4-10-1980. On the pleadings of the parties, the trial Court framed the following issues:-- ' ISSUES:
(1) Whether the suit is collusive? OPD
(2) Whether the plaintiffs in both the suits have no cause of action and locus standi to brine the suit'? OPD, I, 2, 3.
(3) Whether the suit land is not pre-emptible? OPD, 1, 2, 3.
(4) Whether the defendants No,1 to 3 have spent Rs,43,000 upon improvement of the suit land if so when and with what effect? OPD, I, 2,3
(5) Whether the suit is incorrectly valued for the purposes of court-fee? OPD, 1, 2, 3.
(6) Whether the plaintiff has waived her right of pre-emption? OPD 1, 2, 3.
(7) Whether the ostensible sale price of Rs,5,000 was fixed in good faith or actually paid? OPD, 1, 2, 3.
(8) If the above issue is not proved then what was the market value of the suit land at the time of sale? O.P. Parties.
(9) Whether the custom of pre-emption exists in town Shakargarh? OPP.
(10) Whether the plaintiff has got superior right of pre-emption qua the vendees and inter se? OPP.
( I I) Relief.
' After recording the oral as well as documentary evidence of the parties, the trial Court decreed the respondent's suit and dismissed the one filed by Mst. Razia Sultana vide judgment and decree dated 29-4-1984, Two appeals, one by Mst.Razia Sultana and the other by the present petitioners, were filed which were dismissed by the learned Additional District Judge vide judgments and decrees dated 3- I 0-1984 .
3. The petitioners' learned counsel contends that in the plaint filed by the respondent no averment was made that the disputed property was agricultural in nature; that the trial Court did not frame any specific issue regarding character of the land; that the rival pre-emptor Mst.Razia Sultana had stated in her plaint that the property was urban immovable property and for that reason had claimed pre-emptive right under section 16 of the Act; that the disputed property is, in fact, urban immovable property and was included in the municipal area vide notification dated 19-11-1959; that the respondent purchased the property for building purposes and got the approved from the Municipal Committee, Shakargarh: that the petitioners be allowed to produce the notification and the map etc. As additional evidence at this stage; that the learned Civil Judge had inspected the spot and prepared his inspection note; that an application was filed by the petitioners before the Appellate Court for permission to place the inspection notes on the record but the application was not decided and that the Courts below had misread the record and failed to take into consideration material evidence which has affected their judgments.
4. On the other hand, learned counsel for the respondent submits that in the plaint the property has been described with reference to Khasra numbers and Khatuni number pertaining to the disputed land on the basis of entries made in the Register Haqdaran Zamin which is sufficient to show that the property is agricultural land; that no separate issue was required to be framed because issue No,3 framed in view of preliminary objection No,1 raised by the petitioners in their written statement was comprehensive enough to cover the controversy relating to the nature of the land; that the parties were conscious of the true nature of the dispute and had produced evidence to substantiate. Their respective pleas; that admission of the rival pre-emptor qua the nature of land was not binding on the respondent; that the notification dated 19-11-1959 was never brought on the record and even otherwise was neither sufficient to prove that the disputed property was included in the municipal area nor was legally enough to take the property out of the purview of the pre- emption laws; that there was nothing on the record to show that the disputed site was actually inspected by the Civil Judge and that he had prepared the inspection notes, hence non-disposal of the petitioners' application to bring the inspection notes on the record was inconsequential; that the two Courts below had rightly recorded concurrent findings on issue No,3 which are not liable to be disturbed in the exercise of revisional jurisdiction and that the petitioners' superior pre-emptive right is established on the record, hence, the Courts below had rightly given findings on issue No,10 in favour of the respondent.
5. There is considerable force in the arguments raised by the respondent's learned counsel. In the plaint, the disputed property has been described with reference to Khatuni number and Khasra numbers shown in Register Haqdaran Zamin for the year 1967-68. Obviously, this record pertains to agricultural land and the plaintiff/respondent was not required to state in so many words that the disputed property was agricultural land. The property is shown to be situated in village Shakargarh and not the town of Shakargarh. It was also stated that the plaintiff being the real son of the vendor enjoyed superior pre-emptive right in respect of the said land. The petitioners were in no manner of doubt that the plaintiff had claimed the property as an agricultural land. In their written statement they had raised a preliminary objection that the disputed property was sold for the purposes of construction of houses and was situated within the area of Municipal Committee, Shakargarh; that it was urban immovable property and hence not pre-emptible. On this preliminary objection, the trial Court had framed issue No,3 in these words; "Whether the suit land is not pre-emptible? OPD 1, 2 and 3. The said issue was comprehensive enough to cover the controversy regarding the nature of the disputed property. Both the parties were fully conscious of the real controversy and had produced evidence to substantiate their respective claims. The petitioners' learned counsel has referred to the admission made by the rival pre-emptor in her plaint that the disputed property was situated in the town of Shakargarh. The admission made by the rival preemptor is not binding on the respondent whose case has to be independently decided on the basis of evidence brought on the record. It may be mentioned that on behalf of Mst. Razia Sultana, the rival pre-emptor, her special attorney Javed Aftab Ahmad appeared as P.W.2 and stated that he had heard that the disputed property had become part of the Municipal Committee. This is obviously hearsay evidence which carries no evidentiary value. The petitioners' learned counsel has tried to build his argument on the basis of notification dated 19-11-1959 issued under Article 8, clause 2 of the Basic Democracies Order, 1959, whereby the entire area of town Shakargarh proposed to be included in the notified area committee, was included in Ward No,l. The said notification was never brought on the record before the Courts below. Even before this Court an application was belatedly filed by the petitioners when during the course of arguments the respondents' learned counsel had pointed out that no application had been filed to bring the notification on the record. Even if the notification is considered it does not advance the petitioners' case because it was issued for the purposes of creating wards for elections under the Basic Democracies Order, 1959. It covers the entire area of town of Shakargarh and not village Shakargarh. The question whether the entire area of town Shakargarh proposed to be included in the notified area committee also covers the village Shakargarh is one of fact and cannot be agitated for the first time in revision before this Court. Even if it is presumed for the sake of arguments that the notification actually covers village Shakargarh as well, it cannot affect the preemptive right of the respondent in the absence of cogent evidence to prove that the property was situated within the limits of a town or a notification was issued by the Board of Revenue under section 3(3) of the Punjab Pre-emption Act. The Board of Revenue has not issued any notification declaring the disputed property to be a part of town of Shakargarh.
Moreover, no cogent evidence has been brought on the record to establish that at the time of sale the disputed land was situated within the limits of town of Shakargarh. In the case of Chiragh Muhammad Khan v. Mst. Naseeban Bibi 1993 SCM R 1308 an argument was raised that by virtue of notification issued by Government of the Punjab, Local Government and Social Welfare Department, schedule of an earlier notification was amended by substituting the boundaries of the area mentioned therein, therefore, the disputed land became urban immovable property. The argument was not accepted by the Hon'ble Supreme Court which refused to give effect to the notification to non-suit a pre-emptor on the ground that the disputed property had become a part of the municipal area or urban immovable property. The Court was pleased to give weight to the view expressed in the case of "Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others" (PLD 1982 SC 159) in Which a notification issued for the purposes of Basic Democracies Order, 1959 declaring certain immovable property as an urban area was held not applicable for the purposes of Punjab Pre-emption Act. The relevant part of the judgment is re-produced below:-- "Coming to the notification, the same, as already noted above, had issued during the pendency of the suits. By the notification, the areas mentioned therein had become urban area "for the purpose of" the Basic Democracies Order, 1959. The notification, therefore, was not for the purpose of the Punjab Pre-emption Act. "
' It was also held in this judgment that an agricultural land was not excluded from the purview of the Punjab Pre-emption Act merely on account of its inclusion in an urban area. In tills connection reliance was placed on the judgment reported as Salamat Rai v. Kanshi Ram and others (AIR 1918 Lah. 334) in which it was held:-- "The mere fact that for certain reasons the Local Government has seen fit to include a part of the Premgarh Estate within the Municipal limits of Hoshiarpur City, does not necessarily mean that the locality in question has become a part of the town for purposes of pre-emption."
Respectfully following the view expressed in the above-quoted judgments of the Hon'ble Supreme Court, I hold that the notification issued under the Basic Democracies Order was simply meant to create wards for election purposes and did not affect either the character of the land or the rights guaranteed or secured under the Punjab Pre-emption Act. Therefore, the mere fact that the property was purchased for construction purposes and that a map had been approved by the Municipal Committee, Shakargarh would not affect the respondent's preemptive right. For the foregoing reason, Civil Miscellaneous No,795 of 1997 is rejected.
6. As regards the argument raised by the petitioners' learned counsel that the petitioners' application filed before the Appellate Court for permission to place the site inspection notes on the record was not decided, suffice it to observe that the record of the trial Court does not contain site inspection notes, therefore, no prejudice was caused to the petitioners merely because the said application was not decided by the Appellate Court. It is true that the order sheet contains an interim order to the effect that the site would be inspected on 3-1-1983. However, there is nothing to show that the site was actually inspected and notes prepared by the learned Civil Judge. Hence, I am not pursuaded to remand the case to the Appellate Court merely because the petitioners' application for additional evidence was not decided by the said Court.
7. No argument has been raised before me to assail the findings of the Courts below on issue No,10 regarding the respondent's/plaintiff's superior right of pre-emption.
8. For the foregoing discussion, I do not find any merit in this petition Which is dismissed, leaving the parties to bear their own costs.